Time to smell the roses or else pay up
August 11, 2017
By Anthony Kaylin, courtesy of SBAM Approved Partner ASE
With workplaces moving more to the open floor plan, a difficult issue is raising its head more and more. Whether its food odors like tuna, perfume, cologne, or body odor, the issue of scent allergies has grown among the workforce. In one case, retaliation and failure to properly accommodate cost an employer $3.3 million.
John Barrie began working for CALTRANS in Nevada City, California, in August 2005. He informed his supervisor when he began working there that he suffers from allergic rhinitis, which in part led to him having a severe allergy to a variety of scents. Allergic Rhinitis generally is the inflammation of the nose when allergens are in the air. A common condition of allergic rhinitis is hay fever.
CALTRANS worked informally to accommodate Barrie’s condition during his first five years of employment including placing him in charge of ordering cleaning agents for use by the department’s custodian. His supervisor also allowed him to let other employees know about which perfumes could cause his condition to worsen. But everything changed for Barrie when his supervisor changed.
His new supervisor stopped the accommodations the previous manager allowed. Barrie had no say in which cleaning supplies were being bought, and his new supervisor told him he could not file official injury reports when his allergies acted up severely. Eventually Barrie complained to the District Manager, who documented the request and accommodation. Yet, the accommodation was not enforced, Barrie continued to complain, and he was later moved to a newly painted office which caused his condition to worsen. Barrie eventually had to file a workers compensation claim.
Barrie was off for two months, and when he returned, he was moved into a lobby area. Further, his job responsibilities were changed and diminished. Once in the new location his coworker denigrated Barrie, calling him names and treating him with general disrespect. Moreover, so did his supervisor, who eventually, as was testified to by two of Barrie’s coworkers, sprayed perfume in his area trying to trigger his allergies.
Barrie filed suit against CALTRANS and the case made it before the jury, which awarded him $3.3 million. “If you look at this case, you see harassment, you see retaliation, but what actually happened at trial was a case about workplace bullying,” Barrie’s attorney, Lawrance Bohm of Bohm Law Group said. “The workplace bullying took the shape of failure to accommodate, mean and nasty comments, changing his workplace, changing his work location, but it was all part and parcel of the same thing: workplace bullying.”
In Michigan there have been some large settlements with scent disabilities. Weber v. Infinity Broad. Corp., No. 02-74602 (E.D. Mich. December 14, 2005), a female disc jockey who claimed under the Americans with Disabilities Act that her radio station employer failed to accommodate her allergy to perfume worn by a co-worker was awarded $1.25 million. In 2010 the City of Detroit paid $100,000 to an employee who complained of scent allergies but was not accommodated.
More recently, the EEOC filed suit in the Middle District of North Carolina alleging that an employer violated the Americans with Disabilities Act (ADA) by refusing to allow an employee with sensitivity to workplace smells to telecommute.
When these situations arise, it can be difficult for HR to accommodate the request. Scent allergies are real. However, when an employee is working in an open area or in a public area, it is very difficult to enforce any ban. The Job Accommodation Network provides an excellent resource when these issues arise. HR should ensure that managers and coworkers know that scent allergy is a real thing and no adverse action should be taken against an employee who complains of it. The interactive discussion should be held with the employee and a reasonable accommodation should be identified, if possible, to limit the employee’s exposure to the offending scents.